从国际法的视角看我国当前人民币汇率政策的合法性

经济全球化对各国货币主权都产生了很大的冲击和影响。近来,我国的人民币汇率问题不断遭到西方国家的指控和非难。但是,从国际法的视角看,我国当前的货币政策是行使国家货币主权的一项重要内容和方式,符合IMF和WTO协定等国际法律文件的规范性要求,具有“合法性”。西方国家指责我国的汇率政策违反IMF和WTO协定是站不住脚的,干涉了我国的货币主权,而且缺乏国际法上的依据。     

论依法治国与社会改革之和谐

当前,我国依法治国和社会改革同时展开,“依法治国”方略的确立要求保持法的稳定性、树立法律至上的权威;但改革所引起的社会关系的变动不得不在一定程度上影响了法的权威性与稳定性。实际上,二者并不存在根本性的矛盾,使二者和谐的主导思想是:改革意味着变法,变法要为改革服务。     

哈耶克政治制度理论研究:关于自发秩序理论下普通法法治国建构路径之探讨——兼评《规则·秩序·无知——关于哈耶克自由主义的研究》

哈耶克的理论以其论战式的理论建构风格和否定性的进化认知方法对其论战的对手———唯理性主义构成了强大的冲击。然而,以批判的路径进行建构,是否可以成为普适之经验,应是值得探讨的学理问题。主要探讨以下两方面:其一,哈耶克的否定性认知方法,是否足以回避其批判对象之弊病;其二就哈耶克的标志性社会理论,尤其是自由秩序而言,在本书所指的两类秩序中,作为规则的秩序之进化,究竟是为受何者规定之变革,以及其对于处于以制度移植为代表特征的现代化进程中的中国社会所具有之意义。     

Making the investment provisions of the Energy Charter Treaty sustainable development friendly

The International Energy Agency estimates that $16 trillion of investment will be needed to meet world energy requirements from 2003 to 2030. The world's poorest countries, where some of the fastest rates of increase in energy production are expected, will require a significant portion of this investment. Energy investment, both as a source of foreign exchange and to expand local access to electricity and other forms of energy, is integral to socioeconomic development. It is reasonable to expect that this anticipated investment will witness a significant number of disputes between investors and host governments. A fair and just dispute settlement system can help promote the needed investment and sustainable development. The Energy Charter Treaty (ECT) takes a comprehensive approach to the international energy sector, including coverage of trade, transit, competition and the environment, but its investment provisions have proven most significant with three international arbitral tribunals having issued decisions under the treaty and more disputes pending. While much of the ECT's effort has been to bridge the former East–West economic divide, the Treaty's scope of application is potentially worldwide, and given the inextricable link between energy, development and the environment it makes sense that the Treaty process forge a developing-country regime, one that promotes the development of energy resources and sustainable development. Drawing upon the work of Konrad von Moltke and the International Institute for Sustainable Development (IISD) and in light of tribunal decisions to date, this essay maintains, inter alia, that the ECT should impose basic transparency and good faith requirements on investors and create a special developing-country regime, promoting sustainable development.

Calculating and Believing: Ideological Norms in the Cradle of Utility Maximization

An individualist approach to political phenomena is not necessarily an economic approach. We can assume that beliefs and commitments as well as selfishness motivate individuals. Ideology provides a basis for individual choice for policy makers and for citizens and is as much a micro-foundation as narrow “self-interest.” Employing a “least-likely” case approach this paper shows that we can find legitimacy and norm-sensitive behavior in the cradle of utility maximization, the firm. In this paper I will lay out some puzzles found in the general areas of business, politics, and policy-making and show how the particular piece of behavior can be understood within the logic of ideological frameworks and the normative acceptability or legitimacy of actions. The purpose is more an “analytical narrative” than a systematic empirical investigation. It suggests the critical importance of examining the normative as well as the self-interest foundation of behavior. To that end, the empirical context of the discussion is provided by business social responsibility, by business participation in elections, by a snapshot of an ideologically driven political career, and by an antibusiness policy decision. The narrative moves from the generosity of business corporations, to foreign-owned corporations' political activity decisions in the host country, to Mrs. Thatcher and the median voter, and finally to the decision to abolish the slave trade.     

The Case of the Hypocritical

This paper analyzes the idea of critique as an idea, in relation to the problematic fiction of legal foundations. In doing so, it refers to the work of Giorgio Agamben and Jean-Luc Nancy. In particular, Jean-Luc Nancy’s concept of the lapsus of right (jus) is explored in relation to the fiction of a Law of law and the notion of the Right to have rights. The paper argues for the conception of an immanent critique of law that seeks to have done with foundational judgments as primary to critique. To have done with judgment as primary is crucial as judgment is the way in which philosophies of law have attempted to establish their own justification while claiming that such a ground or justification comes from an external source. Instead, what is to be reconceived and in a preliminary way is that critique and its concepts are intimate to their problems and vice versa. I wish to thank each of the participants to this issue for their effort and their kind collaboration and V. Kelley for her invaluable assistance in the final editing process. I thank C. Douzinas for introducing me to the work of Jean-Luc Nancy and P. Fitzpatrick and S. Motha for sharing their paths of reading. Especial thanks to A.␣Schütz, E. Loizidou, N. Moore, J.á. Bellido Anon and A. Bottomley for discussions on disagreement. Gratitude is owed to J.-L. Nancy for inspiring thoughts and writings and for the sweetness in response to my suggestion that there are no antidotes to the poisons we write. This is for the wonderful Elene.     

"双规双指":相对合理性与适法有限性

"双规双指"作为纪检、监察的调查措施,既有政策依据,也有党纪国法规范可循,既存在合理性,也有合法性."双规双指"在实践中演变为刑事侦查措施,成为侦查权力的运行方式,仍然具有相对合理性,但适法性不足,有违侦查法治主义的要求和社会主义民主法治建设的需要,应当改革.     

Financial Institutions between Effectiveness and Legitimacy – A Legal Analysis of the World Bank,Global Environment Facility and Prototype Carbon Fund

Environmental financing is one of the crucial issues of international environmental law and its implementation. From an environmental perspective a prerequisite for success is that financial resources are used in an environmentally effective way. Whether the World Bank, the Global Environment Facility (GEF) and the Prototype Carbon Fund (PCF) can be perceived as effective environmental actors has to be measured by their objectives, their potential to promote accepted environmental standards and their relevant funding practices. After significant improvements of their environmental policies, the World Bank must be considered the most important institution for environmental financing due to its involvement in environmental trust funds but also in regard to its regular lending practices. The GEF remains exceptional due to its institutional structure and scope, whereas the PCF is an example of public–private partnerships that might be a model for future financing via trust funds. Since acceptance of institutions can only be created if they are considered to be legitimate, legitimacy is closely tied to effectiveness. The main criteria for legitimacy are state consent and the equality of states as well as supplementary considerations such as transparency and public participation. From this perspective the World Bank, GEF and PCF structures of voting and participation have come a long way, and despite their particularities and deficiencies they reflect to a varying degree elements of legitimate decision making.     

政府的基本职能:代理与服务--国家起源的政治学与经济学再解读

国家与公众之间形成的契约关系、委托代理关系和交换关系,是政治学与经济学国家理论一致的解释.政府的基本职能应该以公众的委托为核心,以成本收益为政府产出的原则.政府与公众之间的委托代理特性导致政府的"败德行为"很难避免,强化政府的代理理念与服务理念就成为政府履行与公众之间的委托代理约定的关键一环.     

"中国哲学之合法性"问题的由来、实质及其对于相关讨论的期望

"合法性"的讨论,旨在完善"中国哲学"学科的方法与理念,而绝不是如某些学者所耸人听闻地表述的,是旨在颠覆"中国哲学"学科.目前"中国哲学史"的写作方式,一方面使我们隔绝和远离了传统中国人的生活经验,另一方面也对典籍文化的原生态造成很大破坏.